In the wake of Judge Hudson’s
decision striking down the individual mandate in the health-care law as unconstitutional, Attorney General Eric Holder and HHS Secretary Kathleen Sebelius have
an op-ed in today’s
Washington Post making the case for the law.
Holder and Sebelius’s case rests on an assertion and two implicit assumptions. The assertion is that the law does things we should want to do, and the assumptions are, first, that there are not other ways to achieve these ends and, second, that the means the law employs should therefore be constitutional. If you don’t think that sounds like much of an argument, you’re right.
They begin with the story of Gail O’Brien, a pre-school teacher in New Hampshire who was denied insurance coverage because she suffers from lymphoma, and now benefits from the high-risk pool New Hampshire created under the new law. Then they argue that suing to overturn a law that helps people like O’Brien is “troubling.” Then they argue that treating people without insurance increases the cost of premiums for people who do have insurance, and that in order to require insurers to cover people with pre-existing conditions we have to make sure everyone buys insurance. This leads them to something like a case for the individual mandate (which they call the “individual responsibility provision”):
Everyone wants health care to be affordable and available when they need it. But we have to stop imposing extra costs on people who carry insurance, and that means everyone who can afford coverage needs to carry minimum health coverage starting in 2014.
If we want to prevent insurers from denying coverage to people with preexisting conditions, it’s essential that everyone have coverage. Imagine what would happen if everyone waited to buy car insurance until after they got in an accident. Premiums would skyrocket, coverage would be unaffordable, and responsible drivers would be priced out of the market.
The same is true for health insurance. Without an individual responsibility provision, controlling costs and ending discrimination against people with preexisting conditions doesn’t work.
This is in no way a legal or constitutional argument, of course. And it’s a very weak policy argument. After all, mandating the purchase of insurance is by no means the only way to address the problem of covering people with pre-existing conditions. As the first paragraph of Holder and Sebelius’s own op-ed makes clear, high-risk pools can achieve this too, and without a mandate. Champions of Obamacare only very grudgingly attached a temporary high-risk pool system to the law so that they would have something to show for themselves before 2014 when the new entitlement system gets going. But as many conservative health-care experts have long argued (
here’s a great example), high-risk pools are actually a very good
alternative to the kind of command-and-control scheme Obamacare would establish. The Virginia lawsuit would in no way undermine the sort of high-risk pool that is helping Gail O’Brien.
As for the notion that requiring everyone to buy insurance is a way to prevent insured people from paying for the cost of covering the uninsured, surely that is a preposterous way to justify a new entitlement program. Holder and Sebelius say that the new law “regulates how we pay for health care by ensuring that those who have insurance don’t continue to pay for those who don’t.” Actually, the law vastly increases the degree to which some Americans pay for the health insurance of other Americans—through a massive expansion of Medicaid and through an enormous new health-care entitlement in the state exchanges. Maybe there’s a case for such redistribution, but Holder and Sebelius don’t offer such a case; they just assert that the law would do the opposite of what it would actually do.
And then, at last, they turn to the question of whether the Constitution even allows for any of this to be done. They write:
Opponents claim the individual responsibility provision is unlawful because it “regulates inactivity.” But none of us is a bystander when it comes to health care. All of us need health care eventually. Do we pay in advance, by getting insurance, or do we try to pay later, when we need medical care?
Their argument, in essence, is that the government has the right to do anything it wants to in the health-care arena because all human beings get sick, and their getting sick can have economic consequences. The choice of some not to purchase insurance means that when they get sick they might incur some costs that would have to be shouldered by others. “For decades,” Holder and Sebelius write, “Supreme Court decisions have made clear that the Constitution allows Congress to adopt rules to deal with such harmful economic effects.” And the way the new health-care law would “deal with” such harmful effects is to make it illegal to make the choice not to purchase insurance. Simple.
By the same logic, of course, you might argue that the government can require each of us to exercise every day and eat our vegetables. Our choice not to do so has grave economic consequences, after all, and under Obamacare, those consequences will be borne by our fellow citizens to an even greater degree than they are today.
Holder and Sebelius offer an unusually revealing glimpse into the mindset of the left today. Every public problem is understood to be ripe for federal intervention, the intervention is to take the form of mandates to simply make different “choices” that better comport with what policymakers want, and doing what you are told by the government is the new definition of individual responsibility. And for all of this to pass constitutional muster, all you have to show is that the end you’re pursuing is a material end, since the Commerce Clause says that addressing any problem with an economic component is a proper end of government and the Necessary and Proper clause says that such ends justify all means.
This is no way to govern a free people. It utterly fails to contend with the character of our society, basic economics, and the plain meaning of the Constitution.
There is no doubt that we have a health-care financing problem in America. The costs of coverage and care are rising too quickly and so too many people are left unable to afford insurance. The left’s solution to this problem is simply to order those costs not to rise: by imposing price controls on providers and mandating the purchase of the resulting insurance products by all. The right’s solution is to foster the development of a genuine market for health insurance—by changing three government policies (Medicare, Medicaid, and the tax exclusion for employer-provided coverage) that have prevented the development of such a market and so enabling consumers to make actual choices among actual alternatives and encouraging providers to compete by offering better products at lower costs.
This is in one sense a debate between different ways of thinking about economics—command-and-control economics vs. market economics. But as Holder and Sebelius demonstrate today, it is also a debate between different ways of understanding American society, and the American Constitution. Their argument makes it awfully clear why it is so important to win that debate and repeal Obamacare.
Re-read Yuval's first paragraph. Now consider that this argument is being offered to rebut a finding of unconstitutionality -- by the Attorney General of the United States. On constitutional questions, proffering a non sequitur should be grounds for removal from that office.
Reply to this commentLinkReport AbuseHolder once thought it was OK to sell pardons for money too. The man has no credibility about any legal question. He's just an jukebox - put money (or the promise of a top job) in him and he'll sign any song you want.
Reply to this commentLinkReport AbuseOne more point: the assertion of government's right to regulate based on certainty of the eventual necessity for health care comes obliquely at the real problem. Insurance, by definition, is a hedge against risk. If what we call "health insurance" is up against a risk of 100 percent, then it is not really insurance at all. It is a means of redistributing cost, either across population or across time for an individual. Those are not the same thing, and it should come as little surprise that members of the current administration favor redistribution of cost as a model for dealing with the issue. They prefer it for dealing with ANY issue.
Reply to this commentLinkReport AbuseAnd the President who pushed this monstrosity is supposedly a Constitutional Law Professor. I am thinking any classes he taught and grades he awarded need to be nullified.
Reply to this commentLinkReport AbuseI am reminded of a line from the movie 'Liar Liar' with Jim Carrey:
"Your honor, I object!"
"Why?"
"Because it's devastating to my case!"
The only honorable resolution to this, by no means likely, is for the Federal government to have *no* role in the health care business, with two exceptions: that required for the active duty military and the care of those so disabled by their wounds that they cannot care for themselves. There is no constitutional way to square this circle otherwise, unless one concedes the Statist premise at the outset.
Government involvement in health care, or any other business for the matter, should be limited to the States and localities.
Reply to this commentLinkReport AbuseThe progressive mantra, repeat after me. Every problem has a federal government solution. Individuals, businesses, local governments, and state governments will always come up with inferior solutions. The Federal government must be proactive in preventing problems from occurring through regulation and power grabs even if there is no current problem and we lead the world in efficiency and safety. (Food safety bill.) Graduates from Ivy League schools in law, business, and economics are qualified to tackle problems in every industry, facet of life, and geographical location from Washington, DC. God does not exist, therefore government shall be granted the authority of God.
Reply to this commentLinkReport AbuseI am no longer surprised at how genuinely insulting the Democrats have become over the health care issue. I love the new poll-tested language that has nothing to do with what the bill actually says. It's almost as insulting as the President saying "I never said it would be free." Right.
@reheiler: Absolutely. The problem is that 99% of the public has been conditioned to call their "Sam's Club" healthcare bulk purchase plan insurance. You don't use your auto insurance to pay for car repairs unless you have been in an accident. But people believe what they believe. Wouldn't all businesses LOVE to have the Government force the public to buy their product while simultaneously eliminating their lower-price competition!?
If this WaPost column is the best argument the Administration can make, the S.C. ruling might hear oral arguments, and provide their ruling after lunch.
Reply to this commentLinkReport AbuseThis is just judicial activism with a right slant. Whether the individual mandate is the only or best way to effect the policy is utterly irrelevant from a constitutional perspective. The question is whether it is constitutional. Under existing precedent, I believe it clearly is. Conservatives play a very dangerous game with this--these are precisely the arguments left-wing judicial activists have been using for decades, the court is the final arbiter of what the best policy. For decades, the right's response was, if you don't like that law, pass a new one. Now, I guess the right is saying Brennan and friends were right all along, a judge just looks to see if he likes the law and if not, throw it out. Like it or not, the mandate was passed by a majority of both houses of congress and signed by the president. If we on the right don't like it, pass our own law. Otherwise, I fail to see what response you can possibly have when a court invents a right to gay marriage, strikes down DADT, or any number of lefty goals.
Reply to this commentLinkReport Abuse@Dan: It's been my observation that most "Constitutional Lawyers" are decidedly leftist. I think much of their Constitutional studies are centered around finding the best ways to circumvent it.
Reply to this commentLinkReport AbuseThis is a popular, and non-partisan variant of the "Nixon Doctrine": anything the President does is legal.
Reply to this commentLinkReport AbuseThe arguments by Holder and Sebelius need not withstand any scrutiny, they're merely a distraction while Obama assesses the threat:bribe ratio needed to force this through.
"By the same logic, of course, you might argue that the government can require each of us to exercise every day and eat our vegetables. "
Yes, you're right. In fact, if you go back and read Elana Kagan's confirmation testimony, she all but acknowledges that very possibility. Kagan, like Holder and Sebelius, doesn't believe that there can be any limits on Congress, so long as Congress is acting what in what is believed (by them) to be the best interests of the country.
I know Rush Limbaugh is sometimes given to absurd exaggeration, if only for entertainment purposes. But, he described the passage of Obamacare as "ball game" - as in, "that's the ballgame". Rush is right. Anything the liberals want to do, all in the name of reducing "health care costs" will be constitutional, if this first step is upheld by the Court. We should be afraid - very, very afraid.
Reply to this commentLinkReport AbuseThe new Congress should impeach Eric Holder. There are so many reasons.
Reply to this commentLinkReport Abuse"Your honor, I object!"
"Why?"
"Because it's devastating to my case!"
lol...........great parallel.
Reply to this commentLinkReport AbuseHolder and Sebelius argue that pre-Obamacare, people who got sick without insurance became a burden on the insured by increasing their costs. That is not a problem of the market, but rather a problem of collectivism. All Obamacare does is expand collectivism.
Reply to this commentLinkReport AbuseI think the idea that Congress can make us do what is best for us is the best thing to come around for ages! Why didn't they come up with this earlier?
Now all we have to do is what we are told. Think of all the problems we will be able solve with no effort at all.
US Auto industry on the ropes? Mandate all households with more than 100k of income must buy a new US car every 2 years or pay a $10k 'tax'!
Air Pollution: Penalize folks $1/mile for driving more than 3000 miles a year.
Homelessness: Mandate a 10% 'occupancy' penalty for unused( or underused if over 200 sq ft and single occupant) bedrooms.
Genetic disorders: You get the idea!
No end of solutions to hard problems when you just have to accept the decision from on high or pay the consequences.
Just what our Founders planned. All hail Mighty Congress.
Reply to this commentLinkReport AbuseDoesn't this administration believe in the Rule of law? This isn't one of those wacko Unitary Executive based arguments, is it? Sounds like they are threatening the independence of the judiciary. Wait a munute -- this isn't the Bush administration. Nevermind
Reply to this commentLinkReport Abuse"If what we call "health insurance" is up against a risk of 100 percent, then it is not really insurance at all. It is a means of redistributing cost, either across population or across time for an individual."
@reheiler: Absolutely correct. And, their argument (when viewed that way) becomes much more transparent - the redistribution of health care costs across society. In other words: socialism.
The rise in costs of health care are primarily due to government regulation: I have to pay redistributed costs for someone else to have Viagra "covered"; or, for someone else's long-term illness that a company is required to "cover". Deregulate, and let the market figure out what is best.
Reply to this commentLinkReport AbuseWhy would he not apply such presumed populism to the immigration or national security issues? He not only makes a mockery of the Constitution, but of himself as well.
Reply to this commentLinkReport AbuseIf you buy their arguments the feds can order any activity that in the government's eyes "benefits" us economically. Hence it could order the recognition of gay marriage as more people marrying would be good economically and remove many federal burdens from the government. It could order people to buy disability insurance who place an undue burden on other citizens in the social system. Their arguments have no legal merit and are strictly policy positions.
Reply to this commentLinkReport AbuseI would just love to see the Solicitor General try to use the "auto insurance" analogy during the Supreme Court hearing on this and watch Scalia eviscerate him.
This is the best Holder and Sebelius can do? I can see why the liberals are nervous...
I was bummed that Judge Hudson did not injoin the implementation of Obamacare because that would have forced Holder to expedite the case up to the Supreme Court. Now, the Administration can drag it's feet through the appeals process which is likely to add another year or more to the time line before this thing makes it to the Supreme Court...Perhaps Judge Vinson in FL will issue an injunction?
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